“The court, I fear, has ventured into a minefield.”
That was Justice Ruth Bader Ginsburg’s prophecy in the wake of last year’s U.S. Supreme Court decision in the “Hobby Lobby Case” that gave certain companies — “closely-held” companies — the right to challenge laws that violate their owners’ religious beliefs.
Justice Ginsburg, being in the minority in the “Hobby Lobby case”, reprised a criticism of the court’s 2010 Citizens Union decision, calling 2014 decision “an expansive notion of corporate personhood.”
(Timothy Egan, op-ed columnist at The New York Times , has characterized that decision as “unleashing a heard of ponies that have gone off in quite unpredicted directions”: “The Conscience of a Corporation” http://nyti.ms/1CiXaFK .)
Now comes Indiana, the All-American Hoosier state, suffering under shrapnel in that legal/moral “minefield”. The state legislature [as well as its Arkansas counterpart] has just amended its controversial law that would have allowed some businesses to refuse to serve L.G.B.T. customers.
The furor over the original law was led by a bevy of large companies headquartered in the state and has revived the national debate over whether a company is truly “a person”. It pits many thousands of closely-held businesses against large, publicly-held companies.
Some say such intercession on moral questions by the large firms is a reflection of the times. Here is Adlai Wertman, professor of the University of Southern California Marshall School of Business: “There’s now an expectation from consumers that companies are going to act as citizens of the world in a different way, that they are going to take responsibility for things that are outside the direct-customer-investor model. The risk-reward profile has changed.”
Nevertheless, the fundamental issue is far from resolved. In Indiana — and no doubt, elsewhere — both sides are prepared to re-engage whenever this fundamental constitutional issue arises.